Are you or will you be a new parent? Do you work for an employer with 20-49 employees? Start the countdown. In less than 90 days California’s brand new, and much more expansive protected parental leave of absence law will come into effect on January 1, 2018. No surprise, this law protects and expands the rights of employees, not employers; this is California, after all.

What does the new law do and how is it different than the old law?

The new law makes an addition to the California Family Rights Act (“CFRA” and pronounced “cee frah”) which allows certain employees to take a legally protected, unpaid 12-week leave of absence from work (called “protected leave”) to bond with a new baby or adopted child. The 12-weeks of leave may be taken as one uninterrupted block of time, or may be taken in smaller bites of time called “intermittent leave”. The law applies to both moms and dads.

Formerly, CFRA applied to employees who work for employers who have 50 or more employees (this mirrors the federal government's version of a similar law called the Family Medical Leave Act (“FMLA”). Read more about the old law here. Now, CFRA has expanded by requiring employers with just 20-49 employees to provide the same protected leave of absence to new parents. The same law will now apply to smaller employers and cover three-million additional workers in California.

What does the employee have to do?

There are essentially three requirements for employees to receive a protected parental leave of absence under CFRA.

First, the employee must have worked for the same employer for at least one year, and worked at least 1,250 hours in the past twelve months. Brand new employees are not covered under the new law, however, employees at or near the one-year mark may sue their employer for anticipatorily interfering with their right to protected leave in the right circumstances.

Second, the protected leave of absence must be for the purpose of bonding within a new child within one year of the child’s birth, adoption, or foster care placement. The new expanded leave law does not protect employees who need time off work to care for their own illness or the illness of a family member; only employers of 50 or more employees must provide that protection to employees.

Third, employees must request the parental leave from their employers. Employees should never rely on the employer to offer the leave.

What does the employer have to do?

First and foremost, employers are required to reinstate their employees to the same job or a comparable job when they return from the parental leave. Remember, the power behind the new law, and all of CFRA/ FMLA, is the right to return the same job when the leave of absence is over.

Employers cannot terminate the employee’s medical insurance during the 12 week protected leave of absence. However, if an employee refuses to return to work after the leave is over the employer can recover the amount of the insurance premiums from the employee.

Importantly, the leave of absence is unpaid, as are all other CFRA-FMLA absences. However, employees must be allowed to apply their accrued PTO or sick time to the leave of absence.

What should an employee do and what can the and employee do or sue for?

In this writer’s experience, large employers already frequently underestimate their rigorous obligations under the CFRA and FMLA. Both laws are complicated and are very demanding on employers. Moreover, the expanded new law takes effect so quickly and covers so many additional smaller employers that it will catch many employers flat-footed. This will result in a tremendous amount of new litigation in California for violation of the parental leave law.

Notably, employers do not need to intentionally deprive an employee of their right to protected leave to be liable under the law. A simple bureaucratic or administrative mistake or ignorance of the law can expose an employer to very large legal claims.

Employers who fail to reinstate employees after the parental leave, or who interfere with the employee’s right to leave, or who take any adverse or retaliatory action against employees for exercising this new right can get sued by the employee. CFRA retaliation or interference claims include damages for lost income, punitive damages, as well as the plaintiff-employee’s attorney fees.

Employees who sense that their employer is interfering with their right to protected parental leave, or who have been refused reinstatement, should contact a plaintiff’s employment lawyer as soon as possible.

Is your employer of 20 or more employees allowing you to take a twelve-week leave of absence to care for a new child? If “no”, contact the Law Office of Brian Mathias.

California’s laws surrounding pregnancy leave and pregnancy discrimination are tricky for employees, human resources, and lawyers alike. For starters, have you heard of the FMLA, CFRA, FEHA, PDL, or PFL? Probably not, and even most California lawyers could not begin to tell you the difference between the legal abbreviations.

Pregnancy employment laws are complicated with many nuances, lots of pages of detail, overlap and conflict with other laws, and regular legislative updates. However they may be easily understood by viewing them in the big picture.

First, California’s public policy is to keep pregnant women and new parents in the workforce. California has written a variety of laws and regulations to implement this public policy. The laws are written for the benefit of employees, they are many times burdensome for employers, and when the laws are ambiguous they are generally applied in favor of the employee.

Second, California law has three different types of protections for pregnant women: 1) a general prohibitation against pregnancy discrimination; 2) an allowance for job protection during a leave of absence for pregnancy, childbirth, or baby bonding (called “protected leave”); and 3) wage and income replacement for missed work.

1. Anti-Discrimination/ Wrongful Terminations:

California’s Fair Employment and Housing Act (abbreviated “FEHA” and pronounced “fee ha”) prohibits workplace discrimination or “wrongful termination” on the basis of pregnancy status. This means that an employer of five or more employees cannot fire or demote a pregnant person because of their pregnancy status. In other words, employers cannot fire an employee because they are pregnant. This includes, in many instances, terminating a pregnant employee because the employer believes the employee would be harming their unborn child by continuing to work.

Similarly, it is a myth that a pregnant employee cannot be subjected to discipline, terminated, written up for poor performance, or otherwise fired while pregnant. Again, the law prohibits the termination of a pregnant employee when the termination is “substantially motivated” because of the pregnancy status. A termination or other adverse employment action not related to the pregnancy may be lawful.

California’s public policy is implemented by allowing for a period of protected time off work, called “protected leave” or a "leave of absence" so that pregnant women may address medical complications during their pregnancy and so new parents may bond with their newborn children. These laws are addressed by the California Family Rights Act (abbreviated “CFRA” and pronounced “cee frah”) and its federal counterpart (the Family & Medical Leave Act or “FMLA). The power behind CFRA and FMLA is that they require employers to hold open the employee’s job for at least 12 weeks and then “reinstate” the employee to their old position when they return to work.

Protected leave only applies to large employers who have fifty or more employees. Similarly, the employee must have worked for their employer for one year or more in order to qualify for leave. New employees are generally not given protected leave.

“Baby bonding” is a part of the CFRA and it serves the public policy of allowing new parents (both moms and dads) to take time off work to care for their newborn children. A CFRA/FMLA eligible employee may take up to 12 weeks of unpaid leave for baby bonding. Similarly, the 12 weeks of leave may be taken as one uninterrupted block of time, or may take it in smaller bites of time, called “intermittent leave”.

California law prohibits employers from retaliating against employees who ask for or take protected leave, and also prohibit employers from interfering with an employee while they take protected leave.

A pregnant mother may qualify for an additional four months of protected leave called“Pregnancy Disability Leave” (or “PDL”) in the event they suffer medical complications during their pregnancy, such as the need for bed rest, severe morning sickness, prenatal care, and other complications arising from pregnancy. Not all pregnant women will qualify for this leave, only those that suffer a medical complication or disability during pregnancy.

This leave is in addition to the leave allowed by CFRA or the FMLA; therefore, an employee that qualifies for PDL and CFRA/FMLA may take seven months of protected leave. Unlike the CFRA or FMLA, employers of five or more employees must allow for PDL and there is no minimum one-year work requirement for the employee.

3. Wage and Income Replacement

Lastly, while California's laws prohibiting discrimination against pregnant women and allowing for protected leave are generally strong, California laws that provide for wage replacement for new moms and dads are generally weak.

While CFRA prohibits employers from terminating health insurance of an employee on protected leave, there is no requirement that the employer keep paying them their regular wages and salary. In other words, a new parent that takes 12 weeks of baby bonding leave will not be paid any actual money.

California’s Employment Development Department or “EDD” (in this writer’s opinion, the most unruly, slow, and horrible bureaucracy in California) does provide some wage replacement to employees who take time off work to bond with a new child, called “Paid Family Leave” or “PFL”.

The problem is that PFL does not pay very much. It only pays four weeks pre-pregnancy if you are considered “disabled” by your pregnancy, and only six or eight weeks after delivery to recover from childbirth or bond with a newchild. Moreover, the employee is only paid about 50% of their normal wages, and in any event no more than $1,173.00 per week.

Are you a Santa Cruz or Monterey County employee facing challenges at work because of your pregnancy? Contact the Law Office of Brian Mathias